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2013 DIGILAW 1105 (PAT)

Anil Kumar v. Meghan Yadav

2013-09-11

RAMESH KUMAR DATTA

body2013
ORDER Mr. Kamal Nayan Choubey, learned senior counsel assisted by Mr. Ravi Kumar, Advocate on record seeks permission to delete the respondent nos. 8 to 14 as he does not intend to press the relief against them and for the said reasons, it is submitted by him that he does not intend to press I.A. No. 1126/2012 also. 2. Permission is granted to delete the respondent nos. 8 to 14 as also the relief contained in sub-para-c of para-1 of the writ application in the course of the day. I.A. No. 1126/2012 is also, accordingly, dismissed as not pressed. 3. Heard learned counsel for the petitioner and learned counsel for the respondent Housing Board. 4. The petitioner has essentially approached this Court for quashing the order dated 11.11.2011 passed by the Managing Director of the Bihar State Housing Board whereby the allotment of plot no. 6H/74 to the petitioner was cancelled for violation of Clauses 13 and 19(a) of the Hire Purchase Agreement. 5. The vendor of the petitioner, Lalan Prasad had applied for and was allotted plot no. 6H/74 by letter dated 26.9.1988 of the Housing Board and thereafter on 9.12.1988 an agreement was entered into between the Board and the said vendor. The said Lalan Prasad after obtaining permission from the Board and depositing the premium (Labhansh) for such transfer amounting to Rs. 1,87,588/-, sold the said land to the petitioner by transfer deed dated 28.6.2000. After the said transfer, the petitioner wrote to the Estate Officer of the Board to give physical possession of the plot in question by letter dated 14.7.2006. Prior to the date of the said transfer, the vendor of the petitioner finding that encroachments had been made on the plot in question by the adjacent plot owners, had made a complaint before the Board. The authorities of the Board referred the matter to the competent authority in terms of Section 59 of the Act for removal of the encroachment caused by the adjacent plot owners. The vendor of the petitioner had also made another complaint against one Raghunandan Bhagat for making illegal construction over the said plot on which the officials of the Housing Board lodged their report before the Agamkuan Police Station on 21.4.1999. The vendor of the petitioner had also made another complaint against one Raghunandan Bhagat for making illegal construction over the said plot on which the officials of the Housing Board lodged their report before the Agamkuan Police Station on 21.4.1999. Another written report was lodged by the Executive Engineer of the Housing Board on 5.5.1999 before the Agamkuan Police Station for taking action with regard to illegal construction over the disputed plot by the said person. However, while the Housing Board filed Eviction Suit No. 22/1999 against the adjacent plot owners of plot no. 6H/75 but no such eviction suit was filed against the encroachment made by Raghunandan Bhagat. 6. After the transfer, the petitioner on learning about the encroachment by the adjacent plot owners as well as construction of Khatal by the other persons, wrote on 3.1.2003 to the Managing Director of the Board stating the aforesaid facts of encroachment by two sets of persons and requesting that the matter be decided expeditiously and the petitioner be given his rights or in alternative another undisputed plot in the same area be allotted to the petitioner. The Assistant Engineer of the Board again wrote to the Officer-in-Charge of Agamkuan Police Station on 17.10.2003 requesting for removal of the illegal Khatal. The officers of the Board also made recommendation for allotment of alternative plot to the petitioner before the senior officials. Similarly further letters were issued by the Executive Engineer to the Officer-in-charge on 12.10.2010, in response to which the Officer-in-charge, Agamkuan Police Station upon investigation wrote back that on investigation made by him at the spot, the encroachers Krishna Yadav, Kishori Yadav and others have claimed that the land belongs to them and it has never been acquired by the Housing Board and therefore the Board has no right to allot the same and accordingly, the Officer-in-charge by his letter dated 15.12.2010 to the Executive Engineer of the Board, sought documentary evidence regarding the plot and acquisition of the said lands. The Officer-in-charge, Agamkuan Police Station also stated in the said letter that he went to the spot on receiving the intimation from the petitioner on 5.12.2010 that the moment he initiated the work on the spot, the said persons came there and started making assault and misbehaviour and got the work stopped. The Officer-in-charge, Agamkuan Police Station also stated in the said letter that he went to the spot on receiving the intimation from the petitioner on 5.12.2010 that the moment he initiated the work on the spot, the said persons came there and started making assault and misbehaviour and got the work stopped. In response to the letter of the Officer-in-Charge, Agamkuan Police Station the Executive Engineer, by his letter dated 8.1.2011 enclosed the necessary documents to show that the plots have been acquired by the Housing Board and possession taken. There are other correspondences in this matter from the period of 2010 to 2012 between the officials of the Housing Board which go to show that they were fully aware of the dispute having been raised by Krishna Yadav and others over the plot in question regarding its acquisition and similarly with respect to the said dispute, proceedings under Section 107 and 144 Cr. P. C. were also initiated. It has also come up in the counter affidavit on behalf of the Housing Board that the encroachment case against the adjacent plot owners was dismissed on 17.7.2003. 7. In the meantime, it appears that in a PIL being CWJC No. 12376/2007 ( Krishna Murari Prasad Singh & Ors. Vs. The State of Bihar & anr.) by order dated 2.9.2008 it was directed that the Housing Board shall ensure that pursuant to general notice dated 14.3.2008, the action against the defaulting allottees, who have not constructed houses within the time provided in clause 13 of the hire-purchase agreement, is completed in exercise of the power under Clause 19(a) within six months from the date of the order. Thereafter it appears that contempt application was also filed for compliance of the order. Pursuant to the same the Housing Board came up with the impugned office order dated 11.11.2011 cancelling the allotment of the plot No. 6H/74 to the original allottee Shri Lalan Prasad, of which possession was given on 9.1.1989, along with other 16 persons on the ground of not having constructed the house on the plot in violation of the terms of Clauses 13 and 19(a) of the agreement. Aggrieved by the same the petitioner has filed the present writ application. 8. Aggrieved by the same the petitioner has filed the present writ application. 8. Learned counsel for the petitioner submits that the case of the petitioner is not at all covered by the decision of the Division Bench in Krishna Muarai Prasad Singh’s case (supra) as it is not a case where the petitioner did not take any step to make construction rather on account of the dispute, firstly with the adjacent allottees and, secondly with those persons who claimed that the said plot belonged to them and had not been acquired by the Housing Board, the house could not be constructed. It is submitted by learned counsel that the present is not a case where the petitioner did not make any attempt to make construction over the land in question rather the petitioner was obstructed in making construction which matter was duly reported by the petitioner to the authorities of the Housing Board who, in turn, had repeatedly filed written reports before the Agamkuan Police Station and the petitioner also on such stoppage being made, had specifically approached the Agamkuan Police Station upon which the Officer-in-charge had visited the spot and taken the statements of the persons who were obstructing. In the said circumstances, it is submitted by learned counsel for the petitioner that on account of default of the respondent-Housing Board in not giving clear cut undisputed possession to the petitioner over the plot in question, the petitioner should not be made liable for the same by further unjustified action of cancellation of the allotment. 9. It is urged by learned counsel for the petitioner that this is a case where the authorities of the Housing Board themselves, instead of blindly without any application of mind cancelling the allotment of the petitioner, ought to have allotted an alternative plot to him, but on account of their inaction in implementing the orders of this Court in Krishna Murari Pd. Singh’s case (supra), ultimately in great haste they have passed an order when the contempt application was filed in order to save their neck. It is submitted that the actions of the respondents in such great haste are without application of mind which is evident from the fact that the cancellation order mentions the name of the original allottee instead of the petitioner to whom the transfer had been made after obtaining the approval of the Board. 10. It is submitted that the actions of the respondents in such great haste are without application of mind which is evident from the fact that the cancellation order mentions the name of the original allottee instead of the petitioner to whom the transfer had been made after obtaining the approval of the Board. 10. Learned counsel for the Housing Board, on the other hand, seeks to rely upon the factum of possession having been granted to the original allottee. He has further sought to refer to various clauses of the agreement between the original allottee and the petitioner to show that clear undisputed title and possession had been handed over by the original allottee to the petitioner and there was not even a whisper in the said agreement about any dispute over the plot in question. It is thus submitted by him that no such plea can be taken by the petitioner after he entered into such agreement with the original allottee. 11. It is also the stand of learned counsel for the Board that the encroachment proceedings having been dismissed by the competent authority in the year 2003 itself, thereafter it is not open to the petitioner to harp upon such encroachment so as to justify his inaction in making construction over the land in question. He has further sought to rely upon the fact that after the transfer in the year 2000, the petitioner had for the first time written to the authorities of the Board in January, 2003 and thus it is submitted by him that sufficient time had elapsed so as to make the present case as a violation of Clause 13 of the hire-purchase agreement. 12. I have considered the submissions of learned counsels for the parties. According to me, all the submissions of learned counsel for the Board, in opposition to the stand of the petitioner, appear to be hyper-technical and contrary to a large number of documents which have been brought on the record which go to show that right from the year 1999, i.e., from before the transfer permitted in the name of the petitioner after obtaining a hefty amount by the Housing Board, the plot in question had not been made free from dispute and therefore there was no occasion for the petitioner to have constructed the house over the same. As a matter of fact, the petitioner did make attempt to construct the house but was obstructed by the persons who claimed the plot as belonging to them as it had not been acquired by the Housing Board. The series of correspondences in this regard by the officials of the Housing Board among themselves and also with the Agamkuan Police Station clearly go to show that no civilian in such a situation would have been able to make construction over the plot in question. For the default of the Housing Board and/or the authorities of the State to enable the petitioner to make construction over the plot in question, the petitioner could not have been saddled with the further liability of cancellation of the allotment of the plot relying upon the order of the Division Bench of this Court in Krishna Murari Prasad Singh’s case (supra) which was rendered with respect to such cases where there was clear possession and complete inaction on the part of the plot owner in making construction of the house in terms of Clause 13 of the agreement. Such is not the case in the present matter where disputes regarding the clear possession had been going on at least from the year 1999 and there has also been active obstruction by the persons who claimed to be the original owners of the land prior to acquisition so as to prevent the petitioner from making any construction on the plot in question. Such a case would not fall within the terms of Clause 13 of the agreement. 13. I am inclined to accept the submission of learned counsel for the petitioner that the respondents have not applied their mind while issuing the impugned order dated 11.11.2011 as they have not looked into the record to see that the original allottee had been permitted to transfer the land to the petitioner in 2000 with the permission of the Housing Board after obtaining premium (Labhansh) for such transaction and thus any liability of the petitioner commenced on the date of such transfer and even from a period prior to such transfer, there are several letters written by the authorities of the Housing Board itself to the Agamkuan Police Station and subsequently also the same has continued right till the year 2011 and admittedly the situation is not yet without dispute. 14. 14. It is thus evident that no such order could have been passed against the petitioner as it is not a case where there is inaction of the petitioner in making the construction rather due to extraordinary circumstances the petitioner could not complete the construction of the house and it is evident from the materials on the record that he had intended to construct the house prior to passing of the impugned order. 15. Thus on a consideration of the aforesaid facts and circumstances, the impugned office order dated 11.11.2011 in so far as it concerns the plot No. 6H/74 of the petitioner, is quashed. The respondents are directed to ensure that encroachment free possession of the said plot is made available to the petitioner so that he can make and complete the construction of the house over the land in question. On failure of the respondents to make available the said plot free from encroachment to the petitioner it would be the responsibility of the respondents to ensure that another plot in or around the same area of similar dimension is allotted to the petitioner. Let the same be done within a period of six months from today. 16. The writ application is, accordingly, allowed with the aforesaid observations and directions.